Sanjeev Batra and Another v. Simranjeet Kaur and Another

1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C’) has been filed on behalf of petitioners challenging order dated 02.05.2019, 30.07.2019 and 17.08.2020 passed by the learned Metropolitan Magistrate (Mahila Court), South District, Saket Courts, New Delhi (‘Trial Court’) vide which petitioner no. 1 and 2 have been summoned by the learned Trial Court in CC No. 10069/2019 filed under Section 12 of Protection of Women from Domestic Violence Act, 2005 (‘DV Act’).

2. In the present case, respondent no. 1 and 2 herein (complainant no. 1 and 2 respectively before the learned Trial Court) had filed a complaint before the learned Trial Court under Section 12 read with Section 18, 19, 20, 21 and 22 of DV Act against six respondents namely (i) Rajiv Batra i.e. husband, (ii) Sanjiv Batra i.e. brother-inlaw, (iii) B.S. Batra i.e. father-in-law, (iv) Kalpana Batra i.e. sister-inlaw, (v) Manish Grover i.e. sister-in-law, and (vi) Poonam Gupta i.e. sister-in-law.

3. The learned Trial Court vide order dated 02.05.2019, after hearing arguments on summoning, had observed that there were prima facie allegations of violence against the husband of respondent no. 1 herein and against petitioner no. 1 i.e. brother-in-law of respondent NO. 1 and that there was prima facie sharing of domestic relationship in a shared household. Thereafter, upon receipt of Domestic Incident Report, summons were issued to father-in-law of respondent no. 1 and to petitioner no. 2 herein i.e. sister-in-law of respondent no. 1 and wife of petitioner no. 1. By way of order dated 17.08.2020, the petitioner no. 1 was directed to file his income affidavit, since the case of respondent no. 1 was that petitioner no. 1 is the biological father of her child i.e. respondent no. 2 and was thus liable to pay her maintenance.

4. Aggrieved by these orders, the present petition had been preferred by the petitioners challenging their summoning in the present case. This Court, vide order dated 11.09.2020 had stayed the operation of summoning orders against the petitioners herein.

5. The case set out in the present petition, and argued by the learned counsel for the petitioners, is that respondent no. 1 and 2 had filed a false complaint under DV Act after a gap of 13 years of alleged offence. It is stated that respondent no.1 had got married in the year 2004 with the elder brother of petitioner no. 1 who is respondent no.1 before the learned Trial Court and after marriage, the respondent no.1 had conceived during the period of March, 2005 to October, 2005. It is stated that petitioner no.1 is brother-in-law/devar and petitioner NO. 2 is sister-in-law/devrani of respondent no. 1, who had got married in the year 2005 and had shifted to the first floor of the property where they had facility of a separate kitchen and they had no concern with any of the family disputes between the complainant and her husband or father-in-law. It is stated that several disputes had arisen between respondent no. 1 and her husband i.e. elder brother of petitioner no. 1 during the year 2005-2007 and respondent no. 1 used to beat her husband and father-in-law, and several police complaints had been lodged in this regard. In this regard, it is stated that in the month of April-May, 2005, a Kalandra under Section 107/151 of Cr.P.C. had been registered between the family members and on 23.05.2005, respondent no. 1 had given a statement to the police that she will take divorce from elder brother of petitioner no. 1 and she had also mentioned that she was 19 years of age. It is further stated that in the year 2007, respondent no. 1 had left the matrimonial home of the elder brother of petitioner no. 1, however, after a gap of almost 12 years, she had got the FIR bearing no. 266/2018 registered under Sections 376/506 of IPC at Police Station Mayapuri on 23.11.2018 against petitioner no.1 and both the elder brother i.e. her husband and father of petitioner no. 1 i.e. her father-in-law. It is stated that respondent NO. 1 has herself admitted in the FIR that she had left the matrimonial home in the year 2007. It is also stated that the sole purpose of lodging the said FIR was to grab the property of father of petitioner no. 1 at D- 137, Janakpuri, New Delhi which is a self-acquired property of the father of petitioner no. 1 and to extort money from both the petitioners. It is stated that on 24.11.2018, statement of respondent NO. 1 under Section 164 Cr.P.C. was recorded before the learned Magistrate and after investigation, chargesheet was filed on 17.01.2019 and the trial of the said case is pending before the concerned Court in Tis Hazari, Delhi. It is stated that only petitioner no. 1 was arrested in the said FIR, merely on the basis of a DNA test, and he was later enlarged on bail by this Court vide order dated 11.09.2019.

6. It is further stated by learned counsel for the petitioners that the respondent no. 1 had then filed a petition under DV Act wherein the petitioner no. 1 and 2 were summoned vide orders dated 02.05.2019 and 30.07.2019, without following the procedure established by law. It is also pointed out that the learned Trial Court on 19.11.2019 had passed an order against the elder brother of petitioner no. 1 granting ad-interim maintenance to respondent no. 1, which was challenged by the elder brother of petitioner no. 1 before the court of learned Additional Sessions Judge-03, South, Saket Courts, New Delhi and vide order dated 17.03.2020, the learned ASJ had set aside the order of the learned Trial Court. It is stated that during the period of lockdown due to Covid-19 pandemic, the matter had got adjourned from time to time. It is stated that on 17.08.2020, the counsel for the petitioner had received a call from the learned Trial Court that the matter was listed before the Court and the counsel for the petitioners got to know that the Trial Court proceedings are going on without considering the case of petitioners and that the Court is passing ex-parte orders against the petitioners and even the dates had been pre-poned by the Court without any intimation to the petitioners or their counsels. It is stated that on 17.08.2020, the learned Trial Court passed an order directing petitioner no.1 to file his income affidavit.

7. It is further argued on behalf of petitioners that the present case is not a case of domestic violence or sexual assault, rather it is a case of grabbing property of the father of petitioner no.1 by hook or by crook. It is stated that the sisters of petitioner no. 1 are married and are also working in connivance with the respondents to grab the said property, since both the real sisters of petitioner no. 1 had made efforts to take forcible possession of the said property. It is stated that the actual dispute had arisen when father of petitioner no. 1 had cancelled all his previous wills and had decided to handover the said property as per his own choice to petitioners and had not given any share to the daughters or the respondents. It is stated that immediately thereafter, the FIR under Section 376 IPC and complaint under D.V. Act had been filed in connivance with sisters of petitioner no. 1 by respondent no. 1. It is stated that petitioner no. 1 is about 51 years of age and petitioner no. 2 is about 45 years of age and they are law abiding citizens. It is stated that the petitioners were residing separately since the marriage and had nothing to do with the respondents. It is stated that there are no specific allegations leveled against petitioner no. 2 in the complaint filed before the learned Trial Court, and that all the allegations against petitioner no. 1 are false, frivolous and baseless. It is stated that respondent no. 1 was not residing in her matrimonial home after the year 2007, therefore, the allegations in the complaint under D.V. Act are baseless. It is also stated that order dated 02.05.2019, 30.07.2019 and 17.08.2020 are liable to be set aside and the petitioners are liable to be discharged since the learned Trial Court has failed to consider that the complaint is malafide and that the petitioners being brother-in-law and sister-in-law are not entitled to pay any maintenance to the respondents. It is therefore, prayed that the summoning orders dated 02.05.2019 and 30.07.2019 be set aside and petitioner no. 1 be discharged.

8. Conversely, the learned counsel for respondents has argued that there are specific allegations against the petitioners in the complaint filed under DV Act and it is only after examining the contents of the complaint and DIR that the learned Trial Court had summoned the present petitioners. It is also stated that as per DNA report, petitioner no. 1 is the biological father of respondent no. 2 i.e. daughter of respondent no. 1 who would be liable to pay maintenance to her, though it is not disputed that petitioner no. 1 is brother-in-law/devar of respondent no.1. It is also stated that there is an inordinate delay on part of petitioners in challenging the summoning orders and they have not invoked the proper remedy i.e. an appeal under Section 29 of DV Act, and the instant petition has been filed only to delay the trial. It is thus argued that it is not a case of discharge and there is no illegality in the orders passed by the learned Trial Court.

9. This Court has heard arguments addressed by the learned counsel for petitioner as well as learned counsel for respondents at length. The material placed on record has also been perused and considered.

10. In light of the submissions made before this Court, it has to primarily decide whether the order passed by the learned Trial Court summoning the petitioners in the complaint filed under Section 12 of DV Act by the respondents is required to be set aside or not.

11. The order dated 02.05.2019 passed by learned Trial Court, pursuant to filing of the complaint under Section 12 of DV Act, reads as under: “Heard, prima facie there were allegations of violence against respondent no. 1 & 2. The aggrieved has also prima facie brought on record that there was sharing of domestic relationship in a shared household between aggrieved and respondent no. 1 & 2. Summoning against respondent no. 3 to 6 is deferred till filing of DIR. Notice be issued to the respondent no. 1 & 2 on filing of Pf/Rc and speed post. Notice be issued to the Protection Officer on filing of Pf. An extra set of petition be filed for supplying to Protection Officer accordingly, process be issued through SHO concerned. Step be taken within 1 week. Put up for report on notice/filing of DIR on 30.07.2019.”

12. After filing of DIR, the learned Trial Court had issued summons against some other respondents in the complaint, including the petitioner no. 2 i.e. wife of petitioner no. 1. The said order reads as under: “As per the DIR, respondent no. 5 to 6 did not reside wjth the aggrieved in shared household. Accordingly, as there was no sharing of domestic relationship in shared household between aggrieved and respondent no. 5 to 6 no ground for summoning respondent no. 5 to 6 is made out. Sufficient ground for summoning respondent no.3 and 5 is made out. Notice be issued to the respondent no.3 and 4 ·on filing of Pf/Rc and speed post. Ordinary process be issued to SHO.concerned steps be taken within 1 week. Summons to respondent no. I and 2 received back unserved issue process summon to the respondent no.l.on filing of Pf/Rc for NDOH. Summons be also served by way of affixation in case of non availability of respondent/refusal/premises locked. Respondent no.2 is stated to be in custody in Tihar Jail in view of the same, issue production warrants against the respondent no.2 on filing of Pf returnable to 30.09.20l[9].”

13. In the given set of facts and circumstance, this Court takes note of the allegations levelled against petitioner no. 1 (respondent no. 2 in the complaint) by the respondent no. 1 in her complaint filed under DV Act, which reads as under: “...13.4. On a certain day in March 2004, the Complainant No. 1's brother-in-law, Respondent No. 2, sent his father (Respondent NO. 3) to Respondent No. 6's house at night from 9 p.m. to 10 p.m. and sent Respondent No. 1 to buy alcohol and cigarettes. It is imperative to be mentioned here that the Complainant No. 1's mother in law was invalid. After sending everyone out of the house on separate errands, Respondent No. 2 started threatening the Complainant No. 1, "Tumhari family kuch nahi kar sakti. Tum bohot gareeb ho. Mai tumhe jaisa kahu, tumhe waisa hi karna padega." He then forcefully had sexual intercourse with the Complainant No. 1. On multiple occasions Respondent No. 2 has forcefully hed sexual intercourse with the Complainant No. 1 after this incident and every time, he threatened her, "isske baare mai kisiko bhi pata nahi lagna chaheye, nahi toh tumhe bohot bhaari nuksaan chukana padega." The Complainant No. 1 was terrified of Respondent No. 2 after this and Respondent No. 2 took full advantage of the same.

13.5. This became a regular affair, Respondent No. 2 would send Respondent No. 3 and Respondent No. 1 out of the house and would have sexual intercourse with the Complainant No. 1 against her will.

13.6. After a while, Respondent No. 2 crossed all limits wherein he entered the bedroom which was shared by Respondent No. 1 and the Complainant No. 1, and stated that he would sleep with them today. When the Complainant No. 1 told him to sleep next to his mother where he used to sleep normally, Respondent No. 2 started beating her up and told Respondent No. 1 to do the same. Eventually, both of them beat up the Complainant No. 1 and then forced themselves on her and sexually abused her. It is pertinent to note that Respondent No. 2 taught Respondent No. 1 how to have sexual intercourse on that night. Slowly, this became a daily and routine affair.